Let me summarize the case against the amendment. In short, it raises the retirement age for the wrong judges, to the wrong ages, in the wrong courts, at the wrong time.

Most of us start with common ground. We join in the consensus that we need more trial judges and that in 2013 to compel retirement of any judge at the age of 70 makes little sense.

There are more than 1,100 judges of courts of record in New York. There are approximately 350 Supreme Court Justices and approximately 760 judges in other trial courts. Supreme Court Justices currently may sit until the age of 76, subject only to receiving three nearly automatic two‑year certifications after reaching 70. In contrast, the remaining judges must retire at 70. When Supreme Court Justices are first certificated, their seats become vacant and are filled at the next election.

In 2011 and again in 2013, the Office of Court Administration proposed a constitutional amendment lifting the retirement age for all judges (except for Judges at the Court of Appeals) from the age of 70 to 74.[1] Unfortunately, our State Legislature chose to adopt a different route at the behest of the Association of Supreme Court Justices. Instead, it proposed to increase the maximum retirement age only for New York’s 350 Supreme Court justices from 76 to 80 and in addition increased the maximum retirement age for the seven judges of the Court of Appeals from 70 to 80. The remaining judges, most of New York’s judiciary, were left facing forced retirement at 70. Consistent with its closed legislative process, this action was made without the benefit of a single public hearing or debate and was completed in the early hours of the final day of this legislative session.

If the proposed Constitutional Amendment is adopted by the public in November, through 2017 forty‑four (44) currently certificated Supreme Court Justices will be eligible to continue to serve until the age of 80. The increased salary impact (including staff and support) to the Judiciary Budget is roughly between $500,000 and $800,000 per Justice per year under the present compensation structure, which should be increased in the next year or two. Advocates for the adoption of this Constitutional Amendment, many of whom are quite ambivalent on the subject, argue that we need the additional certificated judges, that Judge Lippman and the Office of Court Administration have indicated that the certification process will be strengthened, at least some of the additional judges (not those between 76 and 80) will be assigned to sit in courts where the need for additional justices is more urgent, including the Family Court, and that the issue of raising the retirement age for the other trial court judges to 74 can be considered in 2015 and 2016. Some have been persuaded by this argument. I am not among them.

The problem with extending the term of thirty to forty additional certificated trial judges is that each and every one will be between the age of 76 and 80. In my view, it is not in the public interest to have so many busy trial courts manned by judges of that age. While some may well be able to serve well, many will not. The demands placed on our trial court judges are enormous, and will be more than challenging for jurists of that age. The burden on the Judiciary Budget will be in the range of at least $30 million or more per annum, monies that will, at best, be inefficiently spent. Clearly, the most effective and cost‑effective way to proceed is to raise the general retirement age of the judiciary from 70 to 74, as the Office of Court Administration had initially proposed, by certification or otherwise, and to seek the creation of additional judgeships in the State Legislature in the courts where they are most needed. In contrast, passing this amendment will only further the divide in retirement ages between Supreme Court Justices and those judges sitting in our lower courts.

The Association of Supreme Court Justices, which has been successful thus far, has long insisted on the special status of that court within the Judiciary. Justices of the Supreme Court already receive higher salaries than many other trial judges, and benefit from greater staff and support. All of them are elected, having been nominated by political party Judicial District Conventions. To extend only their terms while leaving the far larger cohort of the judiciary forced to retire at the age of 70 is counterproductive. The best way to preserve the expertise that is lost because of the current retirement age and relieve the burdens on the system at the lowest cost is a Constitutional Amendment simplifying the judiciary by merging a number of lower courts into the Supreme Court, where a larger number of judges would be eligible to serve until the age of 76, and providing that lower court judges would be able to serve until the age of 74.

Judge Lippman has also promised to strengthen the certification process with public hearings and outside review. He should be commended him for his efforts to mitigate the unfortunate priorities of this amendment, and make the best out of a bad amendment. But, as the old French proverb goes, one cannot make a silk purse out of a sow’s ear.

There are also troublesome issues relating to the extension of the terms of members of the Court of Appeals. In short, the proposed Constitutional Amendment would allow Court of Appeals Judges to serve up to the age of 80 but would not allow them to receive new terms after they reach the age of 70. The end result of this proposal is that the seven judges on the Court of Appeals will all have different retirement ages, as follows:

Judges whose terms expire after the end of the year of their 70th birthday, even if they are not yet 71 years old at the end of their term, cannot be reappointed. In other words, any judge appointed or reappointed between the ages of 57 and 66 will have to retire before age 80.

Judges whose terms expire before the end of the year of their 70th birthday but after their 66th birthday, can be reappointed and serve until they turn 80.

To provide a concrete example, a judge appointed or reappointed at age 57 can serve until he/she turns 71, with no possibility of reappointment, but a judge appointed at age 70, as long as the appointment takes place before the end of the year in which he/she turned 70, can serve until age 80. In our view, this arbitrary system – which keys off the time when a judge’s term begins as opposed to the current system of a uniform retirement age for Court of Appeals Judges makes no sense. It would lead to a patchwork quilt of retirement ages for what is intended to be a unified court with seven coequal judges, as illustrated in the attached chart.

Age of Appointment/Reappointment of a Court of Appeals Judge and Corresponding Mandatory Retirement Age Under the Proposed Constitutional Amendment

Age of Appointment/

Reappointment

Retirement Age

Maximum Terms/

Maximum Years

42

80 (if reappointed at ages 56 and 70)

3/42

43

71 (if reappointed at age 57)

2/28

44

72 (if reappointed at age 58)

2/28

45

73 (if reappointed at age 59)

2/28

46

74 (if reappointed at age 60)

2/28

47

75 (if reappointed at age 61)

2/28

48

76 (if reappointed at age 62)

2/28

49

77 (if reappointed at age 63)

2/28

50

78 (if reappointed at age 64)

2/28

51

79 (if reappointed at age 65)

2/28

52

80 (if reappointed at age 66)

2/28

53

80 (if reappointed at age 67)

2/27

54

80 (if reappointed at age 68)

2/26

55

80 (if reappointed at age 69)

2/25

56

80 (if reappointed at age 70)

2/24

57

71

1/14

58

72

1/14

59

73

1/14

60

74

1/14

61

75

1/14

62

76

1/14

63

77

1/14

64

78

1/14

65

79

1/14

66

80

1/14

67

80

1/13

68

80

1/12

69

80

1/11

70

80

1/10

[1] This recommendation implemented the conclusions of a New York State Bar report known as the Milonas report.

One response to “Full Text of Kovner’s Memorandum”

This is the most cogent analysis I have read of the proposed amendment — amd quite compelling. Cuomo’s opposition message (or the coverage of it) mangled the argument, unfortunately, and focussed too much on the effect on the governor.

Marshall Beil

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